Confrontation in Domestic Violence Litigation: What Every New Attorney Should Know about the Necessity of Victim Participation

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1 Confrontation in Domestic Violence Litigation: What Every New Attorney Should Know about the Necessity of Victim Participation By: Michael D. Dean i Those experienced in domestic violence litigation are familiar with the usual facts: a couple gets into an argument that escalates to a physical assault. When the police respond, the victim, overcome with emotion, recounts to police and medical personnel what occurred. Based on these statements, the defendant is arrested and charges are filed. As time goes on, the couple makes amends and wounds heal. The victim no longer wishing to pursue the prosecution disappears, but the State has a no drop policy. This situation forces the State to prove its case without its victim s live testimony a feat that seems impossible without violating the defendant s right to confrontation. But the young attorney should know that through thoughtful application of hearsay and Confrontation Clause exceptions, such cases may be salvageable. This article discusses three ways a victim s prior statements may be introduced against the accused, even when the victim fails to participate in the prosecution. Before diving into the details, it would be useful to discuss Confrontation Clause basics for those who have not yet crossed its path. 1 The 6 th Amendment s Confrontation Clause has been the frequent subject of Supreme Court decisions since the 2004 opinion of Crawford v. Washington. 2 In Crawford, the Court held that testimonial statements are inadmissible at trial against the accused unless (1) the witness is unavailable, and (2) the defendant had a prior opportunity to cross-examine the witness. 3 Thus, the threshold question is whether the witness statements are testimonial. To this end, courts are instructed to look at the declarant s primary purpose in making the statement at the time it was uttered. 4 Generally speaking, the statement is considered testimonial if the declarant s primary purpose was to provide facts in an investigation for later use in prosecution. 5 If the statement is testimonial, courts next examine whether the two conditions of Crawford are satisfied. Unavailability requires the proponent of the evidence to demonstrate that he or she was unable to procure the attendance of the witness at trial despite reasonably diligent effort. 6 Prior opportunity to cross-examine generally means 1 This area of the law is voluminous and complex. A comprehensive review of the Confrontation Clause is outside the scope of this article. Moreover, the case law may vary from one jurisdiction to another. It is important to conduct thorough, independent research when faced with a Confrontation issue. This piece is intended as a general starting point U.S Id. at Michigan v. Bryant, 131 S.Ct. 1143, (2011). 5 Id. 6 See e.g. Christian v. Rhode, 41 F.3d 461, 467 (9 th Cir. 1994).

2 that the defendant must have had a prior chance to develop the witness testimony, and a similar motive for doing so. 7 With these basics in mind, it is easy to see why domestic violence prosecutions where victims are notoriously evasive seem doomed from the start. After all, one would expect that allegations of abuse made after law enforcement intervention are almost certainly testimonial in nature. However, this article will now examine three possible avenues through which the state may be able to overcome this apparent barrier. 1. Forfeiture by Wrongdoing: Advice for the Defense Many defense attorneys are familiar with the common client inquiry: What will happen if she [or he] doesn t show? In cases where there is a strong tie between our client and the victim, we usually have already asked ourselves that very question. We have a duty to our clients to answer such a pertinent question as it may bear on the outcome of the case. However, make sure your answer also addresses what will happen if your client causes the victim not to appear. If the State discovers that your client caused a witness to evade the subpoena (and can prove it), the State may invoke the principle of forfeiture by wrongdoing. Constitutional protection or not, the Confrontation Clause is still subject to long-recognized legal doctrines that were in place at the time the Sixth Amendment was adopted. If your client has engaged in conduct with the design to prevent the victim s attendance at trial, the client loses the safeguard created by the Confrontation Clause. 8 Your client forfeits the ability to object to the victim s testimonial hearsay statements and, by your client s own design, eliminates the opportunity to cross-examine those statements. In short, your client gets nothing and pays everything. You also have your own hide to look after. Your matter-of-fact advice that a witness s failure to appear may be advantageous could be misconstrued as a nod of approval to influence the witness. If you find yourself in the position of a client seeking advice to the hypothetical noshow, make it absolutely clear that you are in no way encouraging that the client influence the witness. Also, follow up with a letter that puts your advice in writing and explicitly list the potential consequences of tampering with the witness. In addition to warning of evidentiary consequences, your letter should remind the client of any protective/no-contact order in place, and should instruct your client that tampering may result in the filing of additional criminal charges. 2. Medical Records and Statements Made to Treating Personnel 7 See U.S. v. Yida, 498 F.3d 945, 950 (9 th Cir. 2007). 8 Giles v. California, 128 S.Ct (2008).

3 Medical records also provide an avenue for proving a domestic violence case without the assistance of the victim. To be sure, the State must usually only prove that the defendant, who stood in a domestic relationship with the victim, knowingly or intentionally battered the victim. Certified medical records are usually admissible pursuant to the business record exception to the hearsay rule. 9 Moreover, medical personnel who made first-hand observations of the victim s physical condition may be called to testify about their observations. The real value to the victim s testimony is describing how the injuries were inflicted and who was responsible. Here, the Confrontation Clause is not likely to be helpful. This is because statements made to a physician or medical personnel for treatment are not testimonial. That is, the primary purpose of the statement is not to assist law enforcement with building a case for prosecution; it is for treatment of injuries. Rule 803(4) of the Federal Rules of Evidence, and the rule of many other jurisdictions, removes statements regarding the cause of injury from the general bar on hearsay. Moreover, the witness s unavailability is immaterial to this exception. But what about proof of the attacker s identity? Surely the victim must be brought to trial to establish that fact in order to satisfy confrontation, right? Actually, no. There exists a growing body of authority upholding the introduction of medical records and testimony from treating physicians regarding the victim s identification of the attacker in domestic cases. The logic is that such information is necessary for diagnosis or treatment insofar that it bears on advice to seek counseling or therapy, 10 or in sexual assault cases screening for sexually transmitted diseases. 11 This boils down to a few practice points: (1) if you are the State, always obtain certified medical records any time your victim has been treated. Moreover, always be sure to interview anybody that was involved in the treatment process to obtain a complete collection of statements made by the victim. The hearsay exception for statements made for diagnosis and treatment may not be limited to statements made to physicians alone, but may also be applicable to any person the victim relied on for treatment. 12 This includes EMTs who came to the scene if your victim declined treatment at a hospital. (2) If you are the defense, be extremely cautious when deciding whether or not to subpoena medical records. If the State has not thought to do so, you may be providing them with an avenue to prove the case that wasn t previously known. Remember, you have a duty to turn over evidence obtained from third parties. (3) If you are the State and you are going to subpoena records, subpoena them for the entire duration of the relationship. Your 9 See e.g. Fed. R. Evid. 803(6). 10 See e.g. U.S. v. Peneaux, 432 F.3d 882 (8 th Cir. 2005); 11 See e.g. U.S. v. George, 960 F.2d 97 (9 th Cir. 1992). 12 E.g. advisory committee notes to Fed. R. Evid. 803(4).

4 jurisdiction may permit evidence of prior abuse over a character evidence objection. Past physical conflict may go to prove motive, intent, or absence of mistake The Ongoing Emergency Outside of possible medical records, there likely exist far more damaging statements made to law enforcement at the scene. If the victim does not appear for court, the defense s first objection to any effort by the testifying officer to establish that the defendant inflicted the injuries should be hearsay (absent the unlikely event that the officer personally witnessed the battery). Most experienced officers and prosecutors will anticipate this and will probably already have laid the appropriate foundation for excited utterance establishing that the victim was in a highly emotional state when the statements were made, brought on by the recent violence. The next objection, granted the victim is not appearing, should be to invoke the defendant s confrontation right. But recent developments in this area of the law have provided the prosecution with an escape hatch. In many instances, the delay in police response provides a window of time for the violence to stop and for the defendant to leave the residence. The uncertainty of the suspect s location and his clear potential to cause violence may create an ongoing emergency that must be quelled. This does something interesting to the confrontation analysis: the State will (and should) argue that the victim s primary purpose in making the statement to the officers (as shown by the circumstances) was to assist in the location and apprehension of the suspect or to address her injuries, not to assist in preparing the case for prosecution. If that is accepted, the statements made are not testimonial therefore removing them from confrontational protection. 14 With that barrier down, the State must only provide a hearsay exception in order for the evidence to be admissible. Again, this creates a potential avenue to prove the case without the victim s assistance. The issue of ongoing emergency is fact-sensitive. When possible, a preliminary hearing should be requested to decide the admissibility of the evidence. Evidence and argument should focus on the declarant s primary purpose for making the statements. Was this a hasty fact gathering, or a formal interview pursuant to an established procedure? Was the declarant discussing events that were still being responded to, or past events that are now being investigated? Was the declarant seeking help for a current physical danger? Were the statements made at a secure location, or at the scene where the violence occurred? The prosecution should attempt to paint a picture of a hectic, unorganized crime scene with a dangerous, loose cannon at large and a fragile frantic victim in need of medical attention. The defense should attempt to show a calm and secure environment, a victim being interviewed 13 E.g. Iqbal v. State, 805 N.E.2d 401 (Ind. Ct. App. 2004). 14 Bryant, 131 S.Ct

5 based on a standardized procedure, and a defendant who was merely cooling off, not a continuing threat to the public. Conclusion There are volumes of decisional law on the issue of confrontation. It is simply not feasible to provide the new practitioner with everything he or she needs to know about this topic in one brief article. However, by grasping these pointers, you will certainly have gained an advantage in the prosecution or defense of domestic violence cases involving the inevitable uncooperative victim. i Michael Dean is a felony trial attorney with the Wayne County (Indiana) Office of the Public Defender. He also serves as Co-Chair of the Young Lawyers Committee. Michael can be contacted by at mddeanlaw@gmail.com.